Thursday 10 May 2007

Contract -> Offer and Acceptance

ANSWER STRUCTURE:

1. Has an offer been made? Was it specific and definite proposition of offerors intentions? Not an ITT, as adverts are usually ITT with few exceptions (Carlill v Carbolic Smoke Ball). Theres little difference between advertising goods in a shop window (Fisher v Bell) and other mediums of advertisement. As advertisements wording is usually too vague (Grainger & Son v Gough) they're considered ITT.

2. If it’s an offer, does the offeree accept unequivocally?
a) Does acceptance contain any new terms, if so it may be a counter-offer which would require the other party to accept (Hyde v Wrench). Although it is possible to accept an offer unequivocal while also making a colateral contract (Society of Lloyds v Twinn).
b) Silence rarely constitutes acceptance, unless offeree has argeed to that method of acceptance (Re Selectmove Ltd).
c) Has acceptance been authorised and communicated by offeree or agent (Powell v Lee).

3. Acceptance communicated effectively? Is acceptance effective on receipt or must it be read? Traditionally acceptance on receipt (Entores Ltd) as without hearing the message it has not been communicated effectively, but recently The Brimnes suggest receipt and intention of parties required: as an answer machine suggests delaying the actual time when communicated therefore a court could imploy the indeterminate time between the reeipt of a letter and it being read.
a) Has offeree used correct mode of communication? If alternative mode used acceptance may not be valid (Tinn v Hoffman).
b) Postal rule: postal acceptance is effective on posting, subject to reasonableness and express reservation contained in offer (Adam v Linsdale) even if lost delayed or destroyed.

4. When acceptance is deemed effective, is the offer still open?
a) Has the offer expired? Baring in mind this can also happen with the death of the offeror (Bradbury v Morgan).
b) Has offer been revoked? Effective anytime before acceptance, provided its communicated (Dickinson v Dodds).

N.B: Remember in the end conclusion the answer need not necessarily be definite. As these questions tend to focus on your analytical argument for both sides.

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